United African-Asian Abilities Club: May 2015

Monday, 25 May 2015

Collection of Cases Where the ADA Defense Lawyer was Sanctioned for Deliberately Delaying the Case

Defense ADA Counsel Deliberately Delays Case for Profit

United States District Court,

S.D. California.

Chris LANGER, Plaintiff,

v.

Scott McHALE; Linda Carpenter; and Does 1–10, Defendants.

Civil No. 13cv2721 CAB (NLS).

Signed Aug. 6, 2014.

ORDER:

(1) DETERMINING JOINT MOTION FOR RESOLUTION OF DISCOVERY DISPUTE;

(2) DENYING DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S EXPERT TO CONDUCT HIS INSPECTION ACCORDING TO DEFENDANTS' METHODOLOGY; and

(3) SETTING AN ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED ON DEFENSE COUNSEL.

NITA L. STORMES, United States Magistrate Judge.

*1 Plaintiff Chris Langer filed this action under the Americans with Disabilities Act (ADA) and related California laws. He alleges that defendants Linda Carpenter, who owns and operates the store Urban Barn, and landlord Scott McHale, who owns the store property and leases it to Ms. Carpenter, did not maintain a handicap-accessible parking space in the parking lot for the store. Defendants filed a motion for partial summary judgment with the district judge, arguing there is no case or controversy to adjudicate.

Before this court is a discovery motion where Defendants seek to compel the Plaintiff's expert to use a certain methodology to conduct a site inspection on Plaintiff's behalf. Plaintiff intends to use the expert report on the site inspection in support of a substantive opposition to the summary judgment motion.

The court has reviewed all filings in this case, and for the following reasons, DENIES Defendants' motion to compel Plaintiff's expert to conduct his inspection according to Defendants' methodology, and sets an ORDER TO SHOW CAUSE why SANCTIONS should not be imposed on defense counsel.

Relevant Background.

After Defendants filed their summary judgment motion, they filed an answer and consequently, this court set an Early Neutral Evaluation (ENE). The ENE notice stayed formal discovery and ordered a personal meet and confer at the subject premises to discuss the alleged premise violations and damages, costs and attorney's fees. Defendants then filed a motion to continue the date of the personal meet and confer to June 25, 2014, the same day as Plaintiff's expert's site inspection, continue the hearing on the summary judgment motion to allow Plaintiff's counsel to incorporate the information from the inspection into his summary judgment opposition, and vacate the ENE pending a decision on the summary judgment motion. [Dkt. No. 20.] The court granted the ex parte motion in its entirety. [Dkt. No. 21.]

Then, on June 20, 2014, Defendants filed an 89–page “objection” to Plaintiff's site inspection set for June 25 that the Defendants admittedly expected and said they were amenable to. [Dkt. No. 20, p .2; Dkt. No. 23.] The court struck the objection from the docket for failure to follow the proper chambers procedures. [Dkt. No. 25.]

Defendants then unilaterally terminated the June 25 site inspection. Next, they filed an ex parte application asking that the site meeting be continued until either (1) an ENE is eventually rescheduled (if Plaintiff survives summary judgment); or (2) if the court orders the site inspection to occur—following resolution of a discovery dispute—that the counsel meeting occur at that time. [Dkt. No. 26.] Plaintiff filed an opposition, asking that the court either hold an ENE or direct the parties to hold their Rule 26(f) conference and open discovery.

On June 27, 2014, this court granted in part and denied in part Defendants' application to further modify the ENE order. [Dkt. No. 29.] That order constituted the third order addressing Defendants' and defense counsel's complaints about Plaintiff's proposed site inspection. To resolve the recurring dispute, the court ordered the following:

*2 • Granted Defendants' request to continue the meeting of counsel to take place at the same time as Plaintiff's site inspection.

• Granted Plaintiff's request and lifted the stay on formal discovery.

• Ordered counsel to meet and confer in person by July 7, 2014 to resolve their discovery dispute. The dispute concerns Defendants' objections to the methodology Plaintiff's expert proposes to use for the site inspection.

• If counsel could not resolve the dispute on their own, ordered them to file a joint discovery motion no longer than 10 pages and with no exhibits by July 11, 2014.

• Reminded counsel of their obligation to cooperate under Civil Local Rule 83.4 pursuant to the court's Code of Conduct.

June 27 Order [Dkt. No. 29].

Counsel met in person to confer on the discovery dispute on July 2, 2014. Plaintiff thought they resolved the issue because they signed a stipulation that if Plaintiff would find that a particular slope was not compliant and the slope measurement could be fairly taken with a 24 inch level, Plaintiff's expert would measure with the 24 inch level, as Defendants request. Because they apparently resolved the dispute, counsel did not file a joint discovery motion by the court-ordered deadline, July 11, 2014.

The site inspection was reset for July 16, the same day Plaintiff's opposition to the summary judgment motion was due. But Defendants unilaterally terminated the site inspection (for the second time), told Plaintiff that even though they signed a stipulation they had in fact not resolved the dispute, and demanded that this joint discovery motion be filed. The parties filed the joint motion on July 16—the same day the inspection was to take place—and five days after the court-ordered deadline.

On August 4, 2014, Judge Bencivengo granted Plaintiff's request to continue the hearing on the summary judgment motion. She said she would entertain a joint request to reschedule the hearing after this discovery dispute is resolved and any required discovery is completed. [Dkt. No. 33.]

Discussion.^FN1

FN1. While this court could strike the motion as untimely and deny Defendants' request on that basis, it will address the merits so as to further confirm the finality of this issue and address the issue of sanctions against defense counsel.

In this joint discovery motion, the parties ask:

Defendants' Position: If Plaintiff's expert takes pictures or measurements of “fringe” or perimeter areas to submit to the court to support the contention that changes are necessary for Plaintiff to return to the property or that the property fails to meet applicable standards for disabled accessibility, Defendants want Plaintiff's expert to also include “appropriate” pictures or measurements of the primary pathways and public areas “so that the Court will receive complete and accurate information about whether changes are actually needed.” If this court grants Defendants' relief, Defendants will seek fees in another motion.

Plaintiff's Position: Defendants cannot dictate how Plaintiff's expert will conduct his inspection or present his findings. Rule 34 allows Plaintiff a right to conduct an expert inspection and “the defense does not have the right to dictate how plaintiff's expert conducts his inspection, where he takes measurements, or to determine or dictate what pictures plaintiff's expert takes (if any) or how he presents his findings.” Plaintiff also asks for sanctions against defense counsel.

*3 In support of their argument, Defendants argue that if Plaintiff's expert does not use the methodology supported by the defense, then “it could create the inaccurate impression in this matter of public record that changes are required, or should be ordered, for the property to meet applicable standards.” Jt. Mtn, p. 3. They say that Plaintiff's unreliable, irrelevant and inaccurate information will not help the district judge determine whether the property meets the applicable standards for disabled access.

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party[.]” Fed. R. Civ. Proc. 26(b)(1). Discovery can be limited if the burden of it “outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed. R. Civ. Proc. 26(b)(2)(iii).

Rule 34 governs site inspections. The purpose is:

to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Fed. R. Civ. Proc. 34(a)(2).

Plaintiff served a request for a site inspection to take place on June 25, 2014. Defendants agreed to the request, and on June 5, 2014 said that “[w]hile all discovery is stayed in this case ... Defendants are amenable to accommodating the inspection request and knew in filing the MPSJ that such a request might be made.” Ex Parte Mtn to Modify ENE and MSJ Deadlines, p. 2 [Dkt. No. 20]. On June 20, though, Defendants changed their mind, filed an 89–page “objection” to the site inspection (which the court struck from the docket), and unilaterally terminated Plaintiff's site inspection. They said they were amenable to allowing the site inspection but want the court to require Plaintiff's expert to use a specific methodology espoused by Defendants. Ex Parte Mtn to Further Modify ENE Order, p. 2 [Dkt. No. 26.] The court refused to impose the methodology and lifted the stay on discovery, so that there would be no question that the site inspection would be permitted.

Now, rather than address whether a site inspection should take place, Defendants use this discovery motion to attack the merits of Plaintiff's case. Such argument is irrelevant to whether Defendants—under the discovery rules—must allow Plaintiff to inspect the premises that he alleges do not physically comply with the ADA. Such an inspection satisfies the relevance requirement under Rule 26 as it relates to the claims and defenses in this suit. There is no apparent burden to Defendants to allow the inspection, which goes to the core issues at stake in the litigation, i.e., whether the premises are ADA compliant. And, Defendants never address why they cannot have their own expert do an inspection according to the protocol they espouse.

*4 Trying to impose a certain methodology on the inspection is not a legitimate basis to refuse to comply with an inspection demand or a court order that lifts discovery. In trying to dictate to Plaintiff how he should conduct his own site inspection, Defendants seek to circumvent the adversarial process and use Plaintiff as a vehicle to present their own arguments. If Plaintiff adopts Defendants' methodology for the site inspection, then it appears there will be no dispute to resolve. The request to order that the site inspection be done in a certain way essentially asks this court for an order that would preemptively determine there is no issue of fact, which is the question squarely before the district judge on summary judgment. In short, Defendants' request makes no sense.

For failure to show any legal authority or good cause to support circumvention of Rules 26 and 34 and the adversarial process, the court DENIES Defendants' motion to compel Plaintiff's expert to conduct a site inspection according to the methodology insisted upon by Defendants. The court ORDERS that Plaintiff's site inspection go forward no later than August 22, 2014, in which Plaintiff's expert shall use his own methodology to inspect the property and neither Defendants or Mr. Peters shall in any way impede the expert's inspection of the property.

Order to Show Cause.

A party can move for an order compelling a site inspection where “a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. Proc. 37(a)(3)(B)(iv). If the court grants the motion, “the court must, after giving an opportunity to be heard, require ... the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” The court will not impose the sanctions if “the opposing party's ... objection was substantially justified.” Fed. R. Civ. Proc. 37(a)(5)(A)(iii). Wilfulness is not a requirement for sanctions; however, a good faith discovery dispute may amount to “substantial justification.” Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir.1981).

At this time it appears to the court that Defendants—based on the advisement of their counsel, Mr. David W. Peters—obstructed discovery without any legitimate justification. The obstruction includes:

• Unilateral termination of the June 25, 2014 site inspection, for which Mr. Peters represented to the court that the Defendants expected and were amenable to. [Dkt. No. 20, p. 2.]

• Filing with the court an 89–page “objection” to the site inspection that Defendants agreed to, which violated the court's filing rules and showed no effort to first meet and confer with Plaintiff to resolve the dispute.

• Even though the court lifted the stay on discovery—thus clearly opening the door for a site inspection under Rule 34—Defendants continued to insist that Plaintiff's expert conduct such inspection according to Defendants' own methodology rather than the expert's own methodology.

*5 • Signing a stipulation with Plaintiff that appeared to resolve Defendants' complaint about the methodology to be used for the site inspection, then unilaterally terminating the July 16 site inspection that Defendants had agreed to schedule.

By obstructing discovery the defense has prevented Plaintiff from filing a substantive opposition to the summary judgment motion. This not only prejudices Plaintiff but also encumbers the court because (1) the district judge has had to continue the briefing and hearing on the summary judgment motion several times to accommodate the defense's conduct; (2) it has encumbered this court with numerous and repetitive filings that ask the court to address the same issue of the site inspection; and (3) carries no regard for deadlines the court imposes, evidenced by the filing of this discovery motion five days late.

The court is aware that Mr. Peters has engaged in almost identical conduct in other cases. See, e.g., Shaw v. Tujunga Restaurants, Inc., 2012 U.S. Dist. LEXIS 176585 (C.D.Cal.2012) (imposing sanctions against Mr. Peters for $17,585.49 to compensate the plaintiff for the work to compel the site inspection, entirely due to the “machinations, misrepresentations, and general bad faith acts by defendant”); see also Hager v. Karr, 2006 U.S. Dist. LEXIS 4068 (C.D.Cal.2006) (imposing $1100 in sanctions against Mr. Peters for discovery violations and warning him that further failure to comply will expose him to the risk of additional monetary and case dispositive sanctions).

Based on the foregoing, the court ORDERS:

1. By August 13, 2014, Plaintiff's counsel shall file a declaration no longer than eight (8) pages setting forth the fees associated with the filing of this joint discovery motion, which shall include the attorney hours expended on the motion and all work to compel the site inspection, the hourly rate of the attorney(s) who worked on this issue, and a description of the attorney's experience.

2. Mr. Peters shall file by August 20, 2014 a responsive declaration no longer than eight (8) pages, setting forth what he believes to be substantial justification for opposing Plaintiff's site inspection demand.

3. Plaintiff may file by August 25, 2014 a reply no longer than four (4) pages to Mr. Peters' declaration.

IT IS SO ORDERED.

Thursday, 21 May 2015

Minority kids

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Minority Kids Less Likely to Be Diagnosed, Treated for ADHD: Study

Finding points to possible disparities in care

HealthDayJune 24, 2013 | 9:00 a.m. EDT+ More

By Brenda Goodman

HealthDay Reporter MONDAY, June 24 (HealthDay News) -- Minority children are significantly less likely than their white peers to be diagnosed or treated for attention-deficit/hyperactivity disorder (ADHD), new research shows.

The study, which is published online June 24 and in the July print issue of the journal Pediatrics, followed more than 17,000 children across the nation from kindergarten to eighth grade. Researchers regularly asked parents if their children had been diagnosed with ADHD.

[Read: U.S. News Best Children's Hospitals]

Even after taking into account a host of factors that may influence behavior, attention and access to health care, researchers found that Hispanic and Asian children and those of other races were about half as likely to receive a diagnosis as whites. Blacks were about two-thirds less likely to be recognized as having problems with attention or hyperactivity as whites.

In addition, when minority children were diagnosed, they were less likely to receive medication than white kids with ADHD, the investigators found.

The study can't say, however, whether the differences mean that ADHD is being underdiagnosed in minorities or overdiagnosed in whites. Previous research has raised both possibilities.

A study published in the journal Clinical Psychology Review in 2009, for example, found that despite having more symptoms of distractibility and hyperactivity, black children were diagnosed with ADHD less often than whites.

[Read: Twitter Chat About Healthy Kids]

On the other hand, a study published in April 2012 in the Canadian Medical Association Journalfound that the youngest children in their school class were more likely to be diagnosed compared to the oldest children in those grades, suggesting that some doctors and teachers may mistake immaturity for ADHD, leading to overdiagnosis.

One expert suggested that socioeconomic and cultural differences may be at work.

Doctors still don't know if one or both problems may be driving the rates of lower diagnoses in minorities seen in the current study, said Dr. Tanya Froehlich, a pediatrician at Cincinnati Children's Hospital in Ohio.

"It does seem to be clear that there are some cultural differences at work, and also probably some differences in access to health care and access to health care information," said Froehlich, who was not involved in the research.

For example, the study noted that children without health insurance were less likely to be diagnosed with ADHD than children who had coverage. Kids from lower-income families were also less likely to be diagnosed.

[Read: Pharmacists' Top Recommended Pediatric Medicines]

Yet, children with older mothers, who tend to be more highly educated, and those with parents who spoke to doctors in English were more likely to be diagnosed with the condition. Both those factors are signs that access to health care and awareness of the problem may also be playing a role.

Several risk factors for ADHD occur more often in minority children than in whites. Those include a lower household income, less educated parents and low birth weight.

"What that suggests in our study is that there are children who are likely deserving of a diagnosis, but who aren't receiving a diagnosis, which raises the question of a lack of treatment," said study author Paul Morgan, director of the educational risk initiative at Pennsylvania State University in University Park, Pa.

The consequences of ADHD can be serious if the condition is left untreated.

"We know that people with ADHD have higher rates of failing a grade in school, lower academic achievement, lower achievement in their jobs, higher rates of incarceration, higher rates of substance abuse, more problems with relationships, and higher rates of depression and anxiety," Froehlich said. "It is extensive."

There's some evidence that treatment, either with behavioral therapies or medication, can improve the outlook for affected children.

"Definitely, we want all kids to be treated and to have the best chance possible for success in life," Froehlich said. "So if people truly have ADHD and they're not identified, that's going to hold them back."

12 >

TAGS: insurance parenting race therapy

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Tuesday, 19 May 2015

Cerebral Palsy Power

Dr. Robert Segalman won an appeal against Southwest Airlines. This case is about two men with cerebral palsy. All people have limits on their abilities. Cerebral palsy limits these two mens' ability to speak and walk and the condition has increased their motivational and mental abilities. Also, their face and body is unique and people perceive them to be not able because of their unique traits.

Segalman, a White man, is retired. He often travels for business. In 2010 he traveled on Southwest Airlines. Southwest mishandled his scooter by removing and misplacing its seatbelt. Segalman fell from the scooter without the seatbelt. Segalman contacted the Federal Aviation Administration saying that Southwest violated the Air Carriers Access Act. The FAA did not help Segalman. Segalman conacted lawyers to help him but none would including Theodore Pinnock. After a second contact by Segalman, Pinnock helped him.

Pinnock, a Black man and an attorney, filed a lawsuit for Segalman while fighting a witch hunt for him. During the Segalman case Pinnock had a health care issue and was not able to fight the racial disability California State Bar hunt against him. He agreed to be disbarred. Pinnock asked Attorney Amy Lepine to take over the Segalman case. She did not win the case and stated an appeal would not be successful. Segalman still believed in Pinnock despite his fall from grace while others avoided him like the plague. Pinnock reasoned that an appeal would be successful.

The trial judge said a airplane passenger with cerebral palsy could not sue an airlines for injuries caused by the airlines. Persons with cerebral palsy are regularly treated unfairly by the courts. This judge is no different. All their lives Segalman and Pinnock have been discriminated against based upon their cerebral palsy. Fortunately, the appeals court said an airplane passenger with cerebral palsy can sue an airlines for injuries caused by the airlines.

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Monday, 18 May 2015

FAMOUS FOLKS With UNIQUE TRAITS

Uniqueness

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Thursday, 7 May 2015

WHY DO WE WANT TO GO BACK.... SAY NO TO SB67

SB 67 reverses 44 years of legislative history save in 2008 and 2012.

The various legislative pronouncements of our state's policy leave no doubt that the purpose of section 54 et seq. and section 19955 et seq. is to reduce or eliminate the physical impediments to participation in community life by the disability community. (In re Marriage of Carney (1979) 24 *178 Cal.3d 725, 738 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028].) The legislative concern with the enforcement difficulties of the handicap access legislation has been stated with clarity. In declaring an amendment to section 54.3 to be an urgency statute, the Legislature explained: "This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution *179 and shall go into immediate effect.

The facts constituting such necessity are: Many physically disabled persons are presently being deprived of their civil rights because the enforcement provisions of Sections 54, 54.1, and 54.2 of the Civil Code are not adequate to insure such rights. This act will provide adequate enforcement and insure that the civil rights of physically disabled persons are being enforced and thus it is necessary that this act take effect at the earliest possible date." (Stats. 1977, ch. 881, § 4, p. 2651, italics added.)

The Legislature's awareness of the continuous problems of enforcement is also reflected in the expansive nature of this body of legislation. (See Achtenberg, "Crips" Unite to Enforce Symbolic Laws: Legal Aid for the Disabled: An Overview (1975) 4 U. San Fernando Val.L.Rev. 161, 175, 208.) Over the five decades since the enactment of sections 54, 54.1 and 54.3, the Legislature has repeatedly expanded the methods of enforcement. (See People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 135, quoting In re Marriage of Carney, supra, 24 Cal.3d at p. 740.) As originally enacted in 1968, section 54.3 set forth that a denial of equal access under sections 54, 54.1 and 54.2 constituted a misdemeanor. (Stats. 1968, ch. 461, § 1, p. 1093.)

In 1976, the statute was amended so that anyone depriving a physically handicapped person of equal access was subject to liability for actual damages plus a maximum of $500 in punitive damages for each offense. (Stats. 1976, ch. 971, § 2, p. 2270.)

In 1977, the limit on punitive damages was increased to $1,000. (Stats. 1977, ch. 881, § 1, pp. 2650‑ 2651.) The 1981 amendment removed the $1,000 cap on punitive damages and set forth, as the statute now provides, that a violator is liable for actual damages as well as an amount up to three times actual damages "but in no case less than two hundred fifty dollars ($250) ...." This last amendment also subjected a defendant to liability for the plaintiff's attorney fees. (Stats. 1981, ch. 395, § 1, pp. 1582‑1583.) An additional remedy was added by the enactment of section 55 in 1974. By this statute, a private action for injunction was authorized for any individual aggrieved or potentially aggrieved by a violation of section 54 or 54.1. (Stats. 1974, ch. 1443, § 1, p. 3150.)

In 1976 the Legislature endorsed an additional enforcement method by enacting section 55.1 which authorizes injunction actions by the district attorney, city attorney, Department of Rehabilitation or Attorney General. (Stats. 1976, ch. 869, § 1, p. 1979.)

After 1976 there were several amendments to strengthen DPA including statutory damages to $4000.

SB 67 contradicts prior DPA history and weakens its enforcement.

WHY SAY NO TO SB67

For over 40 years, persons with disabilities have had the legal right to full and free access to roadways, sidewalks, buildings and facilities open to the public, hospitals and medical facilities, and housing pursuant to the CA Disabled Persons Act.

Long before the ADA was passed, California was concerned about the lack of enforcement of the DPA. It repeatedly increased DPA's statutory damages and added an attorney fee shifting statute as a private gain incentive to encourage private enforcement of DPA. Cases filed under DPA and ADA Title III seeks to enforce a right deemed to have special social importance. They involve situations in which governmental authority or resources do not suffice to assure adequate public enforcement, or in which successful pressing of such claims will benefit numbers of other people (by deterring other violations, for example, or making new law). THE LEGAL THEORY OF ATTORNEY FEE SHIFTING: A CRITICAL OVERVIEW, THOMAS D. ROWE, JR.*DUKE LAW JOURNAL[1] Docket 21-23.

Now California, once the leading state for the advocating of civil rights of people with disabilities, is using the pretext of reducing litigation to reduce disabled persons’ civil rights. California’s pretext of using reduction of litigation as a pretextual basis becomes crystal clear by examining the small claims cases.

There were 71,252 such cases filed in 2012 with only a 41% disposition before trial success rate. Yet, in these cases, defendants do not have the option of forcing plaintiffs to an EEC while the

case is stayed. The State would reduce litigation in small claim matters by requiring such an EEC, but the State does not require such a process. However, California passed two EEC laws targeted at disabled persons filing equal access claims when, in 2012, only 2078 such claims were filed. As of January 2015, 46% of such cases were filed by two plaintiffs only and only two law firms filed the majority of such cases. The State says it passed SB 1186 to reduce litigation. If the State were actually interested in reducing litigation it would have focused on small claims cases as 51% of those cases must be tried, which is a large caseload. In light of the disparity of treatment between construction access and small claim matter, the State is engaging in proxy discrimination[2] against people with disabilities.

[2] Pacific Shores applies to the instant bill as to “proxy discrimination.” The State contends that SB67 is a neutral law that targets the bad conduct of lawyers. However, this is only a proxy to eliminate the enforcement of the ADA and California Law related to a disfavored group or groups. The disfavored groups are the Plaintiffs with disabilities that bring the ADA lawsuits and their attorneys to enforce the access laws and for private gain. SB67 wants to stop private gain. Congress passed the ADA to guarantee civil rights to people with disabilities without creating bureaucracy. Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 28 C.A.9 (Cal.),2013.

NO TO SB67 & STOP SB251

Most of the members in our association are fiscal conservatives that support civil rights and enforcement thereof for all. The last groups to gain civil rights are the gay and lesbian communities and people with disabilities.

Also, we are aware the public is tired of litigation. In 2012, about 1 million civil lawsuits were filed and only 2078 access cases were filed. But in the United States people take for granted the imperfect but great civil justice system. Some of our members reside in the Philippines, where on paper, the justice system is the same as in the U.S but only people with money can access the courts. Indeed, the Philippines has a great Family Code and terrific civil rights laws for people with disabilities. However, men who create children are not forced to support them because the mother cannot afford a lawyer. Further, in the Philippines, people invest in educational programs to encourage businesses to comply with disability rights laws. But such programs do not work. Also, there is no private enforcement access lawsuits allowed in the Philippines and the government does not allocate access enforcement funds. So there is no enforcement in the Philippines. In light of this, California civil justice system is great.

Let us examine the true reasons behind the passing of SB 1608 and 1186, and the proposed SB 67. The first true reason is the belief that filing access enforcement lawsuits for private gain is wrong - this is "ADA Abuse." It is perceived that access enforcement lawsuits that correctly allege access violations is still ADA Abuse. Another name for this abuse is "Predatory Lawsuits." Predatory means a defendant is forced to settle quickly or litigate, and implies a person is on the "hunt" for access violations. Legislators want to stop the hunt. All the other reasons relate to these beliefs.

The second reason for the said bills is the personal conduct of plaintiffs. The sex offender from Arizona comes to mind. We forget the sex offender has the right to travel. We forget that a sex offender that has been convicted and served a sentence has civil rights. Like it or not, a sex offender parolee in a wheelchair has civil rights under ADA.

Another reason for said bills is the conduct of access attorneys. Attorney conduct is divided into negotiation tactics and ethics. As to tactics, access lawyers demand correction of access violations within a deadline with or without a lawsuit. Businesses complain about these pressure tactics. But pressure tactics are an integral part of all legal systems. For example, a district attorney gives a criminal defendant two days to accept a plea. Why should a business be immune to such pressure?

As to the ethical conduct of access lawyers, this conduct has nothing to do with a business' violations of the access laws. Also, it is the responsibility of the State Bar to discipline such misconduct. One prime example of the Bar's power to discipline is the disbarment of access lawyer Theodore Arthur Pinnock by nolo contende. A nolo means the underlining facts of the disbarment cannot be used in other proceedings to prove truth. However, the State Bar performed its function even if Mr. Pinnock is challenging the facts as to filing access lawsuits without client consent in court. The point here is that there is no need to reduce statutory damages to prevent any alleged lawyer misconduct.

The true reason for the said bills is to stop ADA enforcement lawsuits and the hunt for access violations. If Congress amends the ADA to prohibit private enforcement and it funds massive government enforcement then the ADA lawsuits will stop. Further, if the California Legislature amends the Unruh Civil Rights Act and the Disabled Persons Act to eliminate the private right of action and fund government enforcement of these acts then this will stop the hunt for access violations. Reducing or eliminating statutory damages will not stop access lawsuits and the hunt for access violations.